Thayer v. Knote

• Decision Date: 05 March 1898
• Docket Number: 10528
• Citation: 52 P. 433,59 Kan. 181
• Parties: W. F. THAYER et al. v. W. P. KNOTE et al
• Court: Kansas Supreme Court

52 P. 433

59 Kan. 181

W. F. THAYER et al. v. W. P. KNOTE et al

No. 10528

Supreme Court of Kansas

March 5, 1898

Decided January, 1898.

Error from Butler District Court.C. W. Shinn, Judge.

Judgment reversed.

J. Mack Love, for plaintiffs in error.

A. L Redden, for defendants in error.

OPINION

DOSTER, C. J.

The plaintiff in error, W. F. Thayer, was the owner of a mortgage given by the defendants in error, Emeline and Robert M Hunter, on the southeast quarter of section 29, township 29 range 5 east, in Butler county.He filed a petition to foreclose it, making the defendant in error, W. P. Knote, a party.Knote in his answer alleged among other things that he was the owner of the mortgaged premises.The court made a general finding that "all the allegations in plaintiff's petition are true as therein alleged"; but by mistake of plaintiff's counsel who prepared the journal entry of judgment, and the oversight of defendant's counsel who approved it, the land was misdescribed as the northeast quarter of section 29, township 29, range 5, east.Following this judgment, the clerk issued an order of sale to the sheriff, in which the land was likewise misdescribed as the northeast quarter, and the sheriff advertised and sold it by such erroneous description, and also in his return of sale similarly misdescribed it.In the plaintiff's motion for confirmation of sale, and in the order of confirmation, the land was correctly described as the southeast quarter.In the sheriff's deed executed to A. D. Prescott, the purchaser and one of the plaintiffs in error, the land was again misdescribed as the northeast quarter.Prescott took possession, through a tenant, of the land intended to be sold, and so far as the record discloses has continued in its possession.It is admitted, however, that this purchase was made by him as the agent of Thayer, the mortgagee.

The foreclosure sale did not satisfy the judgment in full by nearly $ 1800; and about two years after the sale the defendant in error, W. P. Knote, purchased the deficiency judgment for $ 150.This purchase was made through the Johnson Loan & Trust Company, the agent of Thayer.Prescott, who as the agent of Thayer purchased the land at the foreclosure sale, testified that Knote gave to him as his reason for desiring to purchase the deficiency judgment that "he was under some obligation to the Hunters and that he did not want the judgment standing against them."Knote did not testify, and there is no evidence in the record contradictory of this statement by Prescott of Knote's reasons for the purchase.The negotiations for the purchase of the judgment were evidenced by letters written by the Johnson Loan & Trust Company, agents for Thayer, to one R. W. Campbell, who in turn communicated their contents to Knote.These letters show that Knote at first desired, not only an assignment which would carry the deficiency judgment, but also the original note upon which it was founded; and that this form of assignment was refused for the reason that the note and mortgage had been canceled by the judgment rendered in the foreclosure sale, and such cancellation entered upon the mortgage records.Whether the facts stated in these letters as reasons for refusing to make the form of assignment desired by Knote really existed, the record before us does not show; neither is it material.The supposition of such facts was stated as a reason for refusing the terms of assignment proposed by Knote.The assignment was made in the following form:

"In the District Court of Butler County, Kansas.

"W. F. THAYER, Plaintiff , v. EMELINE HUNTERet al., Defendants.Assigment.Judgment rendered November 28, 1890, for $ 2068.30, and costs.

"For value received I, W. F. Thayer, plaintiff in the above entitled cause, do hereby assign, transfer and set over unto W. P. Knote the judgment rendered in the above entitled cause in my favor against Emeline Hunter and Robert M. Hunter, and for any and all balance that may be due thereon, and any and all rights existing or that may arise thereunder.All done without recourse on me.

"Witness my hand at Concordia, New Hampshire, on this 31st day of July, 1893.

W. F. THAYER."

Upon procuring the assignment, Knote, as assignee, entered satisfaction of the deficiency judgment on the records of the court, and also entered satisfaction of the mortgage upon the records in the office of the register of deeds.

In November following the execution of this assignment, Thayer, the plaintiff in error, having discovered the mistakes of land description existing in the record of his foreclosure proceeding, brought suit to correct the description in the journal entry of judgment, and to set aside the sheriff's sale of the misdescribed land, and for an order to sell it by its correct description.To this the Hunters, the mortgagors, Prescott, the purchaser at the mortgage sale, and Knote, the assignee of the deficiency judgment, were made parties.Knote answered by setting up his purchase and instrument of assignment, and also alleged the two and three years' Statutes of Limitations in bar of the action.The plaintiff in his reply alleged his ignorance of the mistakes of land description in his foreclosure proceeding at the time of their commission, and his recent discovery of them, and also alleged that Knote had full knowledge of such mistakes, and knowledge of the plaintiff's ignorance of them, and that, having such knowledge, he sought to defraud and did defraud him in procuring the assignment of the deficiency judgment.In this reply the plaintiff tendered back the money paid by Knote for the purchase of the assignment, and also interest on the amount.

Neither the petition nor the reply of plaintiff prayed for a rescission of the instrument of assignment, and, so far as the above stated allegations of the reply are concerned, they constituted what in pleading is called "a departure."They departed from the statement of the cause of action set out in the petition and alleged new and independent grounds for relief against the defendant Knote.However, no objection upon this score was made on the trial of the case, nor has any been made to us in the briefs or oral argument of counsel, and we shall therefore treat the new matter set out in the reply as though it constituted a part of the petition.While the plaintiff did not, either in petition or reply, in terms pray for a rescission of the instrument of assignment, he did, in the reply, tender back to the defendant Knote the money paid for the purchase of the assignment, and the interest on the same, and pray that the court order that it be received in full of Knote's interest.The right to have this done necessarily involves a rescission of the contract, and we shall therefore treat the pleadings as though a formal prayer for rescission had been made.The court below made a general finding in defendant's favor and rendered judgment thereon.From this finding and judgment the...